A Major Scandal at the Army Crime Lab

by Kevin Jon Heller

On paper, courts-martial are far more fair than military commissions — the substantive law they apply is superior, and their rules of evidence and procedure are designed to protect defendants, not ensure convictions.  Unfortunately, a recent McClatchy investigation indicates that literally hundreds of courts-martial might have relied on evidence that was unreliable and even fabricated by an unethical forensic scientist at the U.S. Army Criminal Investigation Laboratory:

For nearly three years, the military held the key to Roger House’s exoneration and didn’t tell him: A forensics examiner had botched a crucial lab test used in the Navy lieutenant’s court-martial.

In fact, the military had begun second-guessing a decade’s worth of tests conducted by its one-time star lab analyst, Phillip Mills.

Investigators discovered that Mills had cut corners and even falsified reports in one case. He found DNA where it didn’t exist, and failed to find it where it did. His mistakes may have let the guilty go free while the innocent, such as House, were convicted.

“It cost him his family and it cost him his Navy career,” House’s attorney, John Wells, said in an interview. “It’s certainly outrageous and unconscionable; it’s the kind of action that makes you want to scream.”

But the problem was bigger than just a lone analyst.

While a McClatchy investigation revealed that Mills’ mistakes undermined hundreds of criminal cases brought against military personnel, it also found that the U.S. Army Criminal Investigation Laboratory, near Atlanta, was lax in supervising Mills, slow to re-examine his work and slipshod about informing defendants. Officials appeared intent on containing the scandal that threatened to discredit the military’s most important forensics facility, which handles more than 3,000 criminal cases a year.

The military has never publicly acknowledged the extent of Mills’ mistakes nor the lab’s culpability. McClatchy pieced together the untold story by conducting dozens of interviews and reviewing internal investigations, transcripts and other documents.

The McClatchy investigation shows:

  • Mills made many mistakes. In an extensive review of his work, lab officials disagreed with his DNA results 55 percent of the time in cases they could retest. Law enforcement officials, following military policy at the time, had destroyed evidence in 83 percent of Mills’ cases before it could be retested. Those 388 cases include rape and other serious crimes.
  • Military officials tried to avert a public scandal and protect criminal cases from outside legal attack, in part by keeping their inquiry of Mills in-house. The lab was supposed to alert a prosecutor about its final investigation in 2008, but he says he was never notified.
  • Even today, more than two years after the lab’s review was completed, some defendants remain in the dark. Mills’ supervisor also impeded the lab’s investigation by failing to produce evidence, adding to delays that hurt military defendants, who faced strictly enforced appeal deadlines.
  • It’s bad enough that the Criminal Investigation Laboratory employed someone so incompetent and unethical.  As is often the case, however, the cover-up is worse than the crime — the Army knew that there were problems with Mills’ work as early as 2002, yet did nothing to rein him in:

    In 2002, Mills failed a hair-analysis proficiency test. In 2003, he mixed up DNA samples. By then, he’d begun to get a reputation for sloppiness among those who signed off on the lab analysts’ work.

    “Too often the review of Mills’ cases takes an extraordinary amount of time, and the reviewing examiner is ultimately performing some of the work Mills should have,” lab biologist Thomas Overson wrote in a 2005 memo.

    Overson reviewed Mills’ work after the 2003 incident and thought it suggested a pattern of mistakes. He recommended a broader review. Mills’ supervisor, Clement Smetana, suspended Mills, but declined to open a wider inquiry. Smetana and other lab officials saw Mills as one of their most productive and experienced analysts, which made them reluctant to confront him.

    In another lapse, lab officials didn’t tell defense attorneys. They reasoned that since the botched DNA test was caught, public notice wasn’t necessary.

    Since the military didn’t preserve evidence, it also missed a chance to retest work that Mills might have gotten wrong.

    Ivor Luke, for one, has been thwarted in his effort to challenge his 1999 conviction because of the destruction of evidence. An enlisted woman had accused the Navy hospital corpsman of sexually assaulting her aboard the USS Port Royal while he was conducting a medical exam.

    “The government … destroyed the physical evidence … thereby precluding the type of retesting that might have restored some level of confidence in the process,” Chief Judge Andrew Effron, of the U.S. Court of Appeals for the Armed Forces, noted earlier this year.

    Despite the seriousness of the 2003 mix-up, Mills returned to casework the next year. Soon, his work was flagged again when co-worker Dr. Timothy Kalafut found that Mills falsified DNA paperwork, and Kalafut alerted supervisors.

    Kalafut and other lab employees grew impatient with the pace of the lab’s response, however. “We felt like it was taking an unacceptably long period of time to even confirm if a problem was found,” Kalafut said.

    Bradley Manning is, of course, scheduled to be court-martialed by the Army.  I have no idea whether the forensic computer evidence in his case was processed by the Criminal Investigation Laboratory — but I think it’s safe to say that the Army’s willingness to conceal exculpatory evidence from defendants should greatly concern anyone who cares about Manning receiving a fair trial.

    ADDENDUM: The McClatchy article indicates that Mills joined the Criminal Investigation Laboratory in 1995.  It’s highly unlikely that the problems with his work only began in 2002, which means that hundreds more courts-martial were likely affected by his work.  It will be interesting to see how the Army deals with those long-closed cases.

    http://opiniojuris.org/2011/04/01/a-major-scandal-at-the-army-crime-lab/

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